The Assault on Affordable Housing

For rent-regulated New Yorkers, money and legal actions have become the weapons of choice used by slumlords -- using the courts to evict them as part of a systematic plan to eviscerate affordable housing in Manhattan. By retaining expensive landlord-tenant lawyers or through politically expedient campaign contributions, wealthy landlords (those with many properties) have deep pockets and are willing to invest large sums dedicated to systematic plans of evicting stabilized and rent-controlled tenants. It is unethical, often illegal, and it works.

Tenant harassment is nothing new. In the last five years landlord abuse has been identified in the 2008 Tenant Protection Act that classifies misconduct which includes the withholding of heat/hot water, the refusal to make necessary repairs and the infliction of emotional distress. Also included in this Act are “multiple instances of frivolous litigation,” as cited by the NYC’s Rent Guidelines Board. Landlords are continuing to bring eviction cases against their rent-regulated tenants with little or no cause in order simply to initiate drawn out legal processes and to force tenants to incur enormous legal costs. Often these cases are frivolous and baseless. But, that’s exactly the point. Forcing a tenant into court in order to start the clock ticking on legal fees for the tenants is the corrupt landlord's sole objective. Tenants may be taken to court for “illusory tenancy”—“illegal subletting”—“clutter”—even, “failure to recycle garbage”—often, supported only by self-serving statements from the landlord’s employees. For example, a tenant may have a friend visiting from out of town. Incredibly, a short visit like this could be used as the basis for an “illegal sublet” holdover action. Or, let’s say that a tenant’s long-term pet dies. Were the tenant to adopt a new one—he or she could be drawn into court for violating the building’s ‘no-pet policy’—even though the old pet had been previously approved.

Landlords often have multiple legal actions in court at any one time and keep attorneys on retainer. These firms specialize in housing court procedures and loopholes as well as the weaknesses in the system. One such firm, Belkin Burden Wenig & Goldman, LLP, whose partner was disbarred, is one of a handful of rent-regulation litigation firms that feast on landlord-tenant acrimony. In 1999 Joseph Burden represented the Standard Realty Group, LLC, in an eviction case detailed in the January 2000 New York Times article titled ‘Is It Harassment? Or Is It the Law?’ by Dennis Hevesi. The Times criticized the landlords represented by Mr. Burden for trying to evict four out of the six tenements at 107 West 11th Street. Eventually the proceedings were dropped. It would be interesting to note how many proceedings would have never been started, however, if law firm employees faced criminal charges for baseless cases intended only to litigate tenants out of their apartments. That has been proposed to the Manhattan D.A. and to the City Council, as well is the Public Advocate.

Tenants in Housing Court, not guaranteed legal representation (unless they are low income and this opportunity becomes available), are forced to take time off from work and pay high legal fees, as well as suffer the emotional distress cause by baseless eviction proceedings permitted by the courts. Most of the time, tenants cannot carry the burden of paying attorneys and keep up with the cost of living and paying rent; many are just exhausted by the years of psychological and financial strain. Often a settlement is offered that involves waiving rent that is owed in return for an agreement to vacate. Often, tenants eventually take the money and vacate. All of this is part of a well-calculated plan engineered by the landlord and the law firms. The landlord then re-rents the apartment, often for twice to three times the amount the previous tenant was paying – which more than pays back the cost of litigation for the landlord. But, it is a criminal enterprise sanctioned by the courts and the government.

And, everyone knows that this is happening. Are there too many campaign donations? Are the City Agencies all corrupt? Is there a plan afoot to empty Manhattan of affordable housing while paying lip-service to keep the votes flowing? After all, 900,000 votes is nothing to screw around with, is it?

The flaws in the system run deep. The Department of Housing and Community Renewal, the agency responsible for reviewing violations and complaints and administering the rental control/stabilization law, has long been accused of making judgments without a reasonable measure of visibility.

“It’s a closed shop,” says Pete Gleason, a lawyer and former candidate for City Council, of the DHCR. “In essence there is no accountability in administrative agencies. They operate on their own whim because they know the courts are not going to overturn their decisions. The courts, erroneously, assume that government agencies are impartial and diligent in doing their work. While people have certain unalienable rights in other judicial processes, in administrative processes deference is given by the courts and power is given by the legislature.”

The proceeding required to overturn an administrative decision which Gleason is referring to, is called an Article 78 petition of the New York Civil Procedure Law and Rules. The petition, usually filed by an attorney, is the only avenue to appeal a Fair Hearing decision, although in the legal community it is basically considered a dead end. Few housing decisions are overturned, as the courts are reluctant to challenge the “knowledge” that the administrative head, the DHCR, has. The courts never consider corruption. The DHCR is accused of being filled with “cronies” carrying out agendas set during the Pataki administration era, which has been criticized for the lack of tangible reform and the consolidation of power under his watch. Employees he appointed with long-term contracts still hold positions at the DHCR, causing concern that they are still heavily pro-landlord and politically skewed.

“No one in the DHCR is going to come forward because they are collecting a paycheck and working towards a pension,” states Mr. Gleason. He adds, “I can appreciate that, I really can. But at some point in their lives these individuals making such onerous decisions are going to look back and regret the impact they had on decent people’s lives.”

The problem in essence is a matter of fairness on one hand, and the opportunity for corruption, on the other. Litigation is a legal reality that provides a system of checks and balances and it is essential to the system. Even frivolous lawsuits must be considered. However landlords are using such lawsuits (eviction proceedings) as a weapon, and they are essentially unfair and cynical in its use of the courts—making judges tools of a corrupt endeavor. It is as if tenants are fighting with wooden swords while the landlords are armed with bazookas. And, it is used against the very people that our city government claims that it wants to keep – families, seniors, artists, and writers and, yes, even City workers. Even when the DHCR does find a landlord guilty of harassment, fines are limited to a $5,000 for each violation. For most landlords that’s laughingly cheap. One solution which would get the attention of both landlords and their attorneys would be to criminalize the initiation and prosecution of such frivolous and baseless evictions.

There have been some successes. In April, Governor Patterson appointed Brian E. Lawler as the DHCR’s Commissioner. Lawler has over 25 years of experience in the affordable housing field. Will he cleanup shop? And, tenants have been organizing. The Shalom Tenants Alliance formed in 2003 to band together against Shalom Realty, and give support and share knowledge on how to approach their court battles and dealing with various city and state agencies.

And recently there was a major win. In February, after Attorney General Andrew Cuomo issued a letter to Vantage Properties (“Vantage”), a major New York City landlord, indicating that he was prepared to sue the company over their harassment of tenants they chose to settle. Vantage agreed to pay $750,000 in damages to tenants who can demonstrate that they were unjustly forced to vacate their apartments or was subject to frivolous Housing Court proceedings. Vantage must also pay an additional $250,000 to not-for-profit organizations that provide free legal and educational services to tenants. Further, the settlement requires Vantage to reform its policies related to processing complaints, initiating legal proceedings, collecting rent, and establishing succession rights.

Said Attorney General Cuomo, “Landlords who harass tenants harm all New York City residents by displacing long-time tenants from stable neighborhoods and exacerbating the affordable housing shortage. In these tough economic times, the preservation of affordable housing is of the utmost importance. Today's agreement with Vantage not only preserves the rent-regulated apartments owned by them, but also sends a strong message that my office will continue to protect tenants and bring unscrupulous landlords to justice.”

There are a number of other landlords in Manhattan who are known to abuse tenants (as well as workers) and are old hands at the “litigate to evict” process, using firms like Belkin, Burden to pursue their corrupt plans. In Manhattan, two former dentists, Mark Ramer and Michael Saperstein, who claim to own scores of buildings, have been operating downtown for years. In some of their buildings, 80-90 percent of the regulated tenants have been either litigated out of their homes or directly threatened with legal actions. Not surprisingly, as the real estate market took off, many of the Tenant’s Organization members were among the first to go. While stuffing people into commercial apartments, storefronts, garage spaces and any other available (but illegal) space at one location at 80 Varick Street – they reap the benefit of cash flow and the ability to threaten the tenants with perfectly legal evictions. There is no defense against being evicted from a storefront, even if the landlord put you there—knowing that you were going to live in the space. The HPD, DHCR, Building Department, Fire Department, Police Department, City Council, Mayor’s Office – have all been notified at one time or another. No action has ever been taken against these characters, euphemistically known as “Mitch and Murray” after nearly 20 years of abuse. In a building loaded with kids and lead paint, asbestos, illegal occupancies and abusive threats against tenants who complain about apartment problems, no one has ever investigated their operation.